I. An Evolving Partnership: A Historical Review of the U.S.–ICC Relationship

A. Orphaned at Birth: United States Cautious Protectionism and Non-Ratification of the Rome Statute

The United States, a patriarchal presence in the creation of international criminal tribunals such as the International Military Tribunal in Nuremberg, the ICTY, and the ICTR, similarly found itself in a leadership role during the initial push to create an international criminal court and in the early stages of drafting what would become the Rome Statute establishing the ICC. As negotiations wore on, however, primary objections to the treaty by the United States could not be overcome, including opposition to the ICC’s authority, in specific situations, to assert jurisdiction over non-state party nationals for crimes, the ability of the ICC Prosecutor to independently initiate investigatory proceedings absent U.N. Security Council (UNSC) approval (proprio motu authority), and provisions related to the crime of aggression.10 Ultimately, the international community would move ahead without the support of the United States. As recalled by David Scheffer, then-head of the U.S. negotiating team in the United Nations talks leading to the creation of the Rome Statute, the United States “tried so hard for so many years to support the creation of the International Criminal Court and we had contributed so much to the text of the treaty. All that we had accomplished would be swamped by the global memory of…[our] vote against the Rome Statute.”11 President Clinton, in a lame-duck action just one month prior to leaving office, did sign the treaty, albeit with the qualification that it would not be submitted to the Senate for ratification due to outstanding and “significant flaws.”12

Conceptual, albeit qualified, support for the ICC during President Clinton’s tenure did not carry over into President George W. Bush’s first term. The Bush Administration took several actions aimed at disassociating the United States from the Rome Statute in anticipation of its impending entry into force in 2002. On May 2, 2002, John Bolton, then-Under Secretary of State for Arms Control and International Security, communicated in writing to the United Nations that “the United States does not intend to become a party to the treaty.”13 Presumably seeking to relieve the United States of its responsibility as a signatory to act in accordance with the treaty,14 Under Secretary Bolton asserted that “[t]he United States has no legal obligation arising from its signature on December 31, 2000.”15 From its position on the UNSC, the U.S. delegation to the United Nations later pushed through a controversial UNSC resolution exempting individuals from non-state parties from ICC prosecution for cases arising from UN authorized missions or operations.16 Perhaps most directly adverse to ICC interests during this period of increasing U.S. isolation from the Court was the passage of the American Servicemembers Protection Act (ASPA), signed into law by President George W. Bush on August 2, 2002.17 This legislation prohibited U.S. military aid to ICC States Parties,18 and continues to restrict U.S. cooperation with the ICC. The ASPA, vesting in the President the authority to “use all means necessary and appropriate” to recover U.S. nationals or other specified persons detained by or at the behest of the ICC,19 evoked images of the U.S. military storming the ICC facilities in The Hague, Netherlands, and came to symbolize a period of antagonistic relations toward the court.

B. A Politic Embrace: The Bush Administration Warms to the Court

President Bush’s second term, served as a turning point for U.S. recognition of the ICC, and was marked by increasing implicit and explicit acceptance of the “reality” of the Court’s role in holding accountable those responsible for the worst international crimes.20 Contrary to the United States’ historically rigid opposition to the assertion of ICC jurisdiction over nationals of non-states parties to the Rome Statute, on March 31, 2005 the United States abstained from voting against a UNSC resolution referring to the ICC Prosecutor the situation in the Darfur region of Sudan, a non-state party to the ICC.21 One year later, the United States supported the trial of former Liberian President Charles Taylor following his surrender by Nigerian authorities to the Court the Special Court for Sierra Leone which utilized ICC facilities.22 And in President’ Bush’s final term in office, the State Department acknowledged the U.S. Government would consider a request by the ICC for information related to the Darfur case.23 Although explanations of the causal factors behind President Bush’s increasingly public tolerance of the ICC range from practical to ideological, the shift was in line with domestic political realities. As President Bush reached his final year in office, the American public broadly supported the prospect of U.S. engagement with the ICC across party lines.24

C. Resetting the Relationship: The Obama Years

On June 15, 2010, State Department officials returned from participating at the first-ever Review Conference on the Rome Statute of the ICC (Review Conference) with a special press briefing announcing, “[W]e have reset the default on the U.S. relationship with the Court from hostility to positive engagement.”25 A range of direct and indirect support from the Obama Administration has accompanied the new U.S. policy of “positive engagement,” both diplomatic and material in nature. In late 2009, the Obama Administration initiated a formal review of U.S. policy toward the ICC, sent a U.S. delegation to participate as an observer at an Assembly of States Parties meeting for the first time since the ICC’s inception, and pledged in-kind support for “existing ICC cases and investigations, and for the development of States Parties’ judicial-system capacity to prosecute ICC crimes.”26

In the face of crisis in Libya, the United States leveraged its position as a UNSC member to lobby on behalf of, co-sponsor, and vote in favor of the UNSC resolution referring the situation to the ICC.27 In Congress, controversial statutory prohibitions on U.S. aid to States Parties were allowed to lapse by 2009.28 The Lords Resistance Army Disarmament and Northern Uganda Recovery Act of 2009 was signed into law on May 24, 2010, accompanied by a statement of support by President Obama for bringing the LRA leadership to justice.29 President Obama later announced the deployment of 100 combat troops to support the apprehension of the LRA leadership.30 The State Department went on to expand its War Crimes Reward Program, “offering up to $5 million for information that leads to the arrest, transfer, and conviction of the top three leaders of the LRA.”31

Upon entering the White House, President Obama vigorously promoted a foreign policy agenda focused on maintaining international peace and security without sacrificing U.S. values, including a respect for universal human rights, personal dignity, and security.32 Consistent with these goals, and following a cascade of overt actions signaling a shift toward U.S. re-engagement with the ICC, it appears the U.S. has identified a number of mutually aligned interests on which to form a basis for improved partnership with the Court.33

II. Limitations on United States Support for Arrests Pursuant to ICC Warrants

The primary limitations on the ability of U.S. agencies and officials to cooperate with the ICC in securing the arrest of at large criminals are statutory, and can be found in The American Servicemembers Protection Act.34 The most relevant constraints include:

• A prohibition on the obligation of U.S. funds to directly or indirectly “support” the ICC.35 “Support” in this context is defined by statute to mean “any kind, including financial support, transfer of property or other material support, services, intelligence sharing, law enforcement cooperation, the training or detail of personnel, and the arrest or detention of individuals.”36

• Prohibition on cooperation by U.S. Courts and government agencies with the ICC, including responding to ICC requests for cooperation and transferring individuals from U.S. territory to the ICC, among other proscriptions.37

Supplementing these statutory limitations are several qualifying provisions providing the Executive Branch a modicum of unilateral authority to act in cooperation with the ICC when serving U.S. interests, including:

• A provision otherwise known as the “Dodd Amendment”, stating that “[n]othing in this [Act] shall prohibit the United States from rendering assistance to international efforts to bring to justice Saddam Hussein, Slobodan Milosovic, Osama bin Laden, other members of Al Queda, leaders of Islamic Jihad, and other foreign nationals accused of genocide, war crimes or crimes against humanity.”38

• A provision identifying the ASPA’s prohibitions on cooperative activities as inapplicable with regard to actions taken by the President on “specific” matters before the ICC in exercise of his authority as “Commander in Chief of the Armed Forces.”39

• Authorization for the President to waive ASPA prohibitions where they would “prevent United States cooperation with an investigation or prosecution of a named individual by the International Criminal Court.”40

Should the Executive Branch choose to interpret them as such, these provisions could provide adequate flexibility for federal, state, and local agencies to significantly and directly support efforts to arrest individuals pursuant to ICC warrants. First, the Dodd Amendment could be interpreted to limit the application of the prohibition on U.S. cooperation in investigations and prosecutions to cases involving American nationals, and thereby protect the U.S. Government’s ability to assist in efforts to secure foreign nationals accused of crimes under the ICC’s jurisdiction.41 The final two provisions appear to grant the President wide latitude to exercise unilateral discretion in his capacity as Commander and Chief as well as to waive certain ASPA restrictions in cases involving an individual “named” by the ICC.42 The latter situation would appear to cover cases in which the Pre-Trial Chamber has considered and issued specific warrants for arrest.

The ASPA, as originally passed, included stronger, even punitive, prohibitions aimed at limiting U.S. relations with nations supportive of the ICC— a strategy which degraded the military-to-military relationships of the United States abroad and for which the many in the Pentagon ultimately dropped their support.43 Contemporary efforts to repeal or amend the ASPA, in whole or in part, would likely still face domestic political opposition but such legislative actions would not be without precedent given prior congressional modifications to the ASPA. Challenges by U.S. elected officials’ to the ICC’s authority persist, however, including repudiations of the ICC’s jurisdictional claims as well as blanket resistance to broader UN frameworks considered a threat to U.S. national sovereignty.44

The ICC must also be cognizant of the public perceptions that might accompany increased collaboration with the United States in light of persistent criticism regarding the selective nature of ICC prosecutions and the undue influence of powerful, mostly Western, nations.45 Such considerations might be of particular concern to the ICC amidst sensitivities surrounding the Office of the Prosecutor’s closure of its Preliminary Examination of potential war crimes in Iraq and forthcoming conclusions with regard to the ICC’s preliminary examination in Afghanistan. The ICC also faces the prospect of renewed U.S. tensions as a result of the ICC’s adoption of two new crimes at the 2010 Review Conference including a prohibition on the use of certain additional weapons in non-international armed conflicts and the crime of aggression.46 Although the United States could not vote on conference proposals, the U.S. did inform the process as an observer and appeared optimistic following the Review Conference, publicly asserting that the “outcome protected [the United States’] vital interests.”47

Because the United States has not yet ratified the Rome Statute, as a non-state party any assistance they provide to the ICC in securing the arrest of individuals pursuant to ICC warrants would be on a voluntary basis. The elective nature of U.S. support for the ICC makes it vulnerable to changes in political leadership within the United States, and any related decline in U.S.–ICC relations. Some argue that the ICC can actually compel non-states such as the United States to cooperate with the ICC on situations referred to the ICC under Chapter VII. It is doubtful, however, that the ICC, rather than allied states through the diplomatic processes, would attempt to compel the cooperation of non-state parties under these circumstances, especially given the ICC’s lack of meaningful authority to even hold those State Parties that have refused to cooperate accountable to their obligations under the Rome Statute.48 And in light of the U.S. veto power within the UNSC, this hypothetical would be irrelevant due to U.S. support serving as a prerequisite for UNSC referral under Chapter VII.

Lastly, it is worth noting that any future decision by the United States to ratify the Rome Statute, however remote in possibility, would also face several legal hurdles in addition to previously mentioned political resistance. U.S. ratification would likely be barred by the ASPA, and therefore require modification by congressional amendment or repeal.49 Further, questions regarding the constitutionality of the Rome Statute, which also prohibits unilateral treaty reservations by States Parties, would first need to be resolved.50 Primary concerns in this area relate to constitutional limitations on Congress’s ability to delegate judicial authority to a non-U.S. court, as well as concerns regarding the protection of American nationals’ constitutionally guaranteed due process rights.51

III. Opportunities for United States Support of Arrests Pursuant to ICC Warrants

Under Article 87(5) of the Rome Statute, “The Court may invite any State not party to [the Rome] Statute to provide assistance…on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.”52 Formal ICC requests to the United States under this authority might trigger the ASPA’s prohibition on “responding to requests” and thereby limit the ability of the United States to consider and fulfill such a request. As detailed above, the several ASPA provisions may still allow for U.S. response and cooperation under certain circumstances involving foreign nationals or in the event the President decides to exercise his waiver or constitutional authority as Commander in Chief. Additionally, there is precedent from the Bush Administration for consideration of ICC requests, notably in the Darfur case in which the State Department publicly acknowledged the receipt of an ICC request for information as well as their policy to “consider” such requests.53

Normative and political support for the ICC as well as assistance in key areas such as witness relocation would greatly benefit the ICC, but “[b]y far the most critical area where the Court requires State support is in apprehending suspects.”54 The ICC has not shied away from welcoming U.S. support in securing the arrest of current and future fugitives. Staff within the Office of the Prosecutor has called on the United States to be a first-mover on this issue, arguing that “[t]he American government first has to lead on one particular issue, the arrest of sought war criminals.... [Other countries] will follow, but we need the U.S. in the lead.”55 High-ranking U.S. officials likewise point to improving the ICC’s track record in apprehending individuals subject to ICC warrants as one of the foremost challenges facing the court, and have encouraged states to take action to assist the ICC in securing arrests.56 Despite the high cost and delay associated with ICC trials to-date, the ICC still offers the United States a cost-effective mechanism for removing bad actors from the playing field— one which doesn’t require the use of force, insulates the United States from expending finite political capital, and advances its long-term peace and security interests.57

The ICC and the United States appear to agree on their mutual interest in apprehending those individuals who remain at large despite pending ICC indictments, but where can U.S. resources be most helpful to the ICC?

The United States can bring significant diplomatic pressure to bear on State Parties refusing to comply with their obligations under the Rome Statute. As a permanent member of the UNSC and a dominant economic power within the international community, the U.S. may be best situated to exert political and economic pressure, particularly where the ICC indicts a sitting head of state. In the case of President Omar al-Bashir, despite a pending indictment, al-Bashir was allowed to freely travel to State Party countries including Kenya and the Republic of Chad without consequence despite specific requests from the ICC Pre-Trial Chamber for the enactment of appropriate “responsive measures.”58 Situations in which the Assembly of States Parties or UNSC has refused to take collective action to enforce the obligations of States Parties to the Rome Statute illustrate the need for forceful, and unilateral U.S. pressure aimed at bolstering the ICC’s ability to improve reliability amongst States Parties and subsequent arrest outcomes.

Perhaps most importantly, the United States can ramp up cooperative military support, direct and indirect, to assist arrest efforts worldwide. The text of the Dodd Amendment to the ASPA specifically safeguards U.S. authority to assist “international efforts to bring to justice…foreign nationals accused of genocide, war crimes or crimes against humanity.”59 The United States has already deployed combat-ready to seek out and capture individuals in the LRA leadership wanted for such crimes.60 Because these individuals are facing named indictments by the ICC, the President could conceivably exercise his waiver authority under the ASPA in order to facilitate their transfer to the ICC. Similar to Bosco Ntaganda requesting transfer to the ICC after turning himself in to U.S. authorities, once in the hands of U.S. military forces, the LRA fugitives may also opt to request relocation to The Hague as a preferable alternative to being placed in custody or facing criminal prosecution domestically. In such circumstances, the Obama Administration might also avoid ASPA limitations all together by arguing that the ASPA does not prohibit the United States from fulfilling an individual’s request for transport to the Netherlands, particularly if U.S. involvement is limited to placing the individual on the necessary mode of transport. The ICC would also greatly benefit from U.S. intelligence sharing, both in support of investigating potential violators of international humanitarian and human rights laws and in securing their arrest. Military assistance might also include U.S. technical advisors, military training, and equipment for states working to secure the arrest of ICC suspects.

Finally, U.S. officials have already promised direct support to improve States Parties’ judicial-system capacity to prosecute ICC crimes, most recently co-sponsoring a program with Norway to strengthen judicial capacity in the Democratic Republic of the Congo.61 Efforts to improve domestic legal systems will help to make the international community’s conception of the ICC as a “court of last resort” a reality. By enabling states’ to more effectively execute domestic prosecutions national governments may be emboldened to independently pursue and prosecute those responsible for violations of those crimes under the ICC’s jurisdiction. U.S. capacity building programs will strengthen the ICC as a system of courts working to end impunity, and although indirect in its support, will free up much needed resources for the ICC to expend in pursuit of those individuals that remain at large years after their indictment.

Conclusion

As a result of both parties having identified increasingly aligned normative and practical interests, the relationship between the United States and the ICC has shifted over time from distanced criticism to pragmatic partnership. In order to improve the ICC’s track record in apprehending those indicted for grave violations of international law, the ICC should capitalize on this period of renewed U.S. engagement by seeking to expand U.S. support, both direct and indirect, for arrests pursuant to ICC warrants.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   The Prosecutor v. Bosco Ntaganda, Case No. ICC-01/04-02/06, Background Information, available online. ↩

2. 2.

   Diana Jenkins, Terminus for the Terminator?, Huff. Post, available online. ↩

3. 3.

   Press Release, ICC, ICC Prosecutor welcomes news of Ntaganda’s transfer to the Court (Mar. 22, 2013), available online. ↩

4. 4.

   Especially following the unanimous acquittal of Mathieu Ngudjolo Chui by the ICC Trial Chamber just a few months earlier. Press Release, ICC, ICC Trial Chamber II acquits Mathieu Ngudjolo Chui, available online. ↩

5. 5.

   Situations and Cases, ICC, available online. ↩

6. 6.

   Eric Posner, The Absurd International Criminal Court, Wall St. J., Jan. 10, 2012, available online. ↩

7. 7.

   David Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals at 165 (Princeton Univ. Press, 2012) (“[T]he United States has a tradition of leading other nations in global treaty-making endeavors to create a more law-abiding international community, only to seek exceptions to the new rules for the United States.”) ↩

8. 8.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute]. ↩

9. 9.

   Id. ↩

10. 10.

    Tod Lindberg, A Way Forward with the International Criminal Court, 159 Pol. Rev. 28 (2010); William H. Taft et al., Am. J. Int’l L., Independent Task Force, U.S. Policy Toward the International Criminal Court: Furthering Positive Engagement, at iv (Mar. 2009), available online. ↩

11. 11.

    See Scheffer, supra note 4, at 224. ↩

12. 12.

    U.S. President Bill Clinton, Statement Authorizing the US Signing of the Rome Statute of the International Criminal Court (Dec. 31, 2000), available online. ↩

13. 13.

    United Nations Treaty Collection, Rome Statute of the International Criminal Court, note 11 (May 6, 2002), available online (last visited May 14, 2013) [hereinafter Bolton Letter]. ↩

14. 14.

    Vienna Convention on the Law of Treaties, art. 18, May 23, 1969, 1155 U.N.T.S. 331, available online. ↩

15. 15.

    See Bolton Letter, supra note 13. The functional legal impact of this “unsigning” continues to be debated, with some experts concluding that U.S. obligations as a signatory to the Rome Statute were relieved but its status as a Signatory remains unchanged. See Taft, supra note 10, at 30-31. ↩

16. 16.

    S.C. Res. 1422, U.N. Doc. S/RES/1422 (Jul. 12, 2002), available online. Some legal experts argue this resolution is incompatible with the Rome Statute and the UN Charter. See Coalition for the Int’l Crim. Court, Res. 1422/1487, 2004, available online (last visited May 10, 2013). The immunity provision was not renewed in 2004, following controversy surrounding the actions of U.S. military service members in Iraq at Abu Ghraib prison. Stephen Eliot Smith, Definitely Maybe: The Outlook for U.S. Relations With the International Criminal Court During the Obama Administration, 22 Fla. J. Int’l L. 155, 163 (2010). ↩

17. 17.

    American Servicemembers Protection Act of 2002, HR 4775, 22 U.S.C. §§ 7421-7433 (2002), available online. [hereinafter ASPA]. ↩

18. 18.

    These punitive measures were accompanied by additional punitive measures, attached to related Appropriations legislation and referred to as the “Nethercutt Amendment,” all of which were later repealed or allowed to lapse by 2009. Emily C. Barbour & Matthew C. Weed, Cong. Research Serv., R41116, The International Criminal Court (ICC): Jurisdiction, Extradition, and U.S. Policy at 4 (Mar. 16, 2010), available online. ↩

19. 19.

    ASPA, supra note 17. ↩

20. 20.

    Jess Bravin, U.S. Accepts International Criminal Court, Wall St. J., Apr. 26, 2008. ↩

21. 21.

    S.C. Res. 1593, U.N. Doc. S/RES/1593 (Mar. 31, 2005), available online. ↩

22. 22.

    See Taft et al., supra note 18, at 15. ↩

23. 23.

    Id. ↩

24. 24.

    See Smith, supra note 16, at 165. ↩

25. 25.

    Special Briefing, Harold Koh & Stephen J. Rapp, U.S. Department of State, U.S. Engagement With the ICC and the Outcome of the Recently Concluded Review Conference (Jun. 15, 2010), available online. State Department Legal Advisor Harold Koh, contrary to the Bush Administration’s purported “unsigning” of the Rome Statute, has since repeatedly and publicly re-affirmed the United States commitment to the “object and purpose” of the Rome Statute. See Jennifer Trahan, U.S. Affirms that It Adheres to Rome Statute Signatory Obligations: It Should Put This In Writing, Opinio Juris (Feb. 27, 2013, 7:30 PM), available online. ↩

26. 26.

    Id. ↩

27. 27.

    S.C. Res. 1970, U.N. Doc. S/RES/1970 (Feb. 26, 2011), available online. ↩

28. 28.

    See Barbour & Weed, supra note 18, at 15. ↩

29. 29.

    U.S. President Barack Obama, Statement by the President on the Signing of the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009 (May 24, 2010), available online. ↩

30. 30.

    Joe Sterling, Obama Orders U.S. Troops to Help Chase Down African ‘Army’ Leader, CNN, Oct. 18, 2011, available online. ↩

31. 31.

    Press Release, U.S. Department of State, Secretary Kerry on Bringing War Criminals to Justice Through Expansion of the War Crimes Rewards Program (Apr. 3, 2013), available online. ↩

32. 32.

    See generally U.S. President Barack Obama, Remarks by the President on a New Beginning (Jun. 4, 2009). ↩

33. 33.

    Barbour & Weed, supra note 18; see also Douglas Dunbar, AMICC, The Obama Administrations Evolving Policy Toward the International Criminal Court (2011); See also Office of the President of the United States, National Security Strategy 48 (2010) (noting U.S. active engagement with States Parties to the Rome Statute and support for “the ICC’s prosecution of those cases that advance U.S. interests”). ↩

34. 34.

    ASPA, supra note 17. For a detailed discussion of the legal restrictions presented by the ASPA on U.S. cooperation with the ICC, see Taft, supra note 10, at 32-34. ↩

35. 35.

    Id. at § 7401(b) (emphasis added). ↩

36. 36.

    Id. at § 7432(12). ↩

37. 37.

    Id. at § 7423. ↩

38. 38.

    Id. at § 7433 (emphasis added). ↩

39. 39.

    Id. at § 7430. ↩

40. 40.

    Id. at § 7422 (emphasis added). ↩

41. 41.

    See Smith, supra note 16, at 187. ↩

42. 42.

    ASPA, supra note 17. ↩

43. 43.

    See Scheffer, supra note 4, at 198. ↩

44. 44.

    Republican Nat’l Comm., 2012 We Believe in America: Republican Platform at 45 (2012), available online. ↩

45. 45.

    David Bosco, Why is the International Criminal Court Picking Only on Africa?, Wash. Post, Mar. 29, 2013, available online. ↩

46. 46.

    Note that “any crime of aggression couldn’t become operational unless it were affirmatively adopted after another review by consensus or a two-thirds decision of all states parties no earlier than January 1, 2017.” See Koh, supra note 25. ↩

47. 47.

    Id. ↩

48. 48.

    Cf. Rome Statute, art. 87; African Union Opposes Warrant for Qaddafi, AP, Jul. 2, 2011, available online. ↩

49. 49.

    See Taft, supra note 10, at xi. ↩

50. 50.

    See Smith, supra note 16, at 180-86. ↩

51. 51.

    Id. ↩

52. 52.

    Rome Statute, art. 87. ↩

53. 53.

    Sean McCormack, U.S. State Department, Remarks at Daily Press Briefing (Jul. 14, 2008), available online. ↩

54. 54.

    See Taft, supra note 10, at 22. ↩

55. 55.

    Interview by Christiane Amanpour with Beatrice Le Fraper, Special Adviser to the ICC Prosecutor, CNN, Mar. 24, 2010, available online. ↩

56. 56.

    Stephen J. Rapp, U.S. Ambassador-at-Large for War Crimes, Remarks to the Assembly of States Parties of the International Criminal Court (Dec. 14, 2011) (“[I]t is a persistent and serious cause for concern that eight individuals who are the subject of existing ICC arrest warrants remain at large.... [St]ates can also lend expertise and logistical support to efforts to apprehend these fugitives.”), available online. ↩

57. 57.

    Marlise Simons, U.S. Grows More Helpful to International Criminal Court, a Body It First Scorned, N.Y. Times, Apr. 2, 2013, available online. (“To use the court as an adjunct to soft power makes sense for the U.S....It’s cost-effective. If you can remove a warlord through the court, it’s a lot cheaper and more acceptable than using force.” quoting Courtenay Griffiths, defense lawyer for former Liberian President Charles Taylor). ↩

58. 58.

    John F. Murphy, Gulliver No Longer Quivers: U.S. Views on and the Future of the International Criminal Court, 44 Int’l Law. 1123, 1136-37 (2010). ↩

59. 59.

    ASPA, supra note 17 at § 7433. ↩

60. 60.

    See Sterling, supra note 30. ↩

61. 61.

    See Trahan, supra note 25; see also Barbour & Weed, supra note 18, at 19. ↩

B. Scholarly Remedies

1. The Proposals

As a result of the Statute’s nondescript enforcement provision and lack of universal application, the international community must appeal to non-statutory remedies in an effort to solve the Court’s arrest problem.

David Scheffer, former U.S. Ambassador-at-large for War Crimes Issues, offers at least three solutions. First, States Parties’ domestic legislatures should pass laws affirming that compliance with the Court’s arrest warrants are obligatory, not optional. According to Scheffer, “there should be a presumption in the international community, like there is in the domestic context, that when the ICC issues an arrest warrant the indictee must be arrested and brought before the ICC.”8 Second, the Court should require non-cooperative states to publicly assert their reasons for disobeying Court requests.9

Third, Scheffer argues that the international community should ratify a protocol establishing a “special operations force, drawn from the militaries of States Parties who sign the protocol.”10 This force would be equipped with the “special apprehension skills and intelligence” necessary to “track and ultimately arrest indicted fugitives on the territory of the States Parties who signed the protocol.”11 Moreover, deployment of this unit would first require consent from the targeted state.12

Scheffer is not alone in championing some form of international force. Cooper and Kohler advocate the establishment of an International Marshals Service (“IMS”), whose responsibilities, inter alia, would include enforcing international justice and executing warrants issued by the ICC’s Pre-Trial Chambers.13 The authors propose two competing IMS models: one created and controlled by the ICC’s ASP and the other by the UNSC.14

Judge Patricia Wald, by contrast, takes a different approach altogether. Recognizing that most countries are “reluctant to give a free pass to any country or international body to enter their territory and arrest their residents,”15 Wald instead argues that “conditionality—on aid, group membership, or trade benefits—has been the most successful in securing arrests.”16 Examples of this conditionality approach include denying the non-cooperating state membership into NATO or the EU or even halting the removal of such a state from the U.S.-designated State Sponsor of Terrorism list.17

2. The Problems

Respectfully, I doubt both the viability and potential impact of these proposals. Wald’s “conditionality” approach is unlikely to incentivize the majority of non-compliant states to actually cooperate. For example, neither NATO nor EU membership is relevant to Libya or Sudan; equally improbable is the belief that Khartoum would surrender its President, Omar-al Bashir, in exchange for a less stigmatizing U.S. designation.

Scheffer’s first two recommendations are also suspect. Bolstering domestic support for ICC warrants in States Parties’ legislatures does nothing to ensure compliance of non-states parties; however, it is non-states parties who are most likely to ignore ICC cooperation requests in the first place. Similarly, forcing non-cooperative states to publicly justify their reasons for ignoring Court requests is unlikely to achieve positive results. Consider the case of Sudan. In July 2012, then Chief Prosecutor Louis Moreno-Ocampo sought a non-cooperation ruling against Khartoum for its refusal to arrest al-Bashir.18 Nevertheless, to date, no UNSC resolution has required Sudan to articulate its reasons for defying the Court’s requests.19 That the UNSC initially referred this case to the Court further belies Scheffer’s second proposition.

Lastly, Scheffer’s plan regarding an international special operations force and Cooper and Kohler’s recommendation concerning an IMS face a multitude of logistical, legal, and financial obstacles. Who would run and monitor these entities? How might they operate without violating a state’s sovereignty? From where would they receive their funding? The latter question is particularly troublesome, especially as the EU—the largest contributor to the budgets of the ICC (60%),20 UN (40%),21 and UN peacekeeping operations (40%)22—continues on its march towards austerity. Legitimacy, too, is a concern. An ICC-run IMS would bind, and therefore operate in, States Parties only; such a force would thus be unable to capture fugitives like al-Bashir. Similarly, an UN-run IMS poses its own challenging hurdles; Cooper and Kohler themselves concede that “many countries will resist empowering a nonrepresentative and overly political body with an enforcement mechanism.”23 Unfortunately, these and other pressing issues are wholly unaddressed in the literature. To date, then, the notion of an internationally run paramilitary unit is but a theoretical pipe dream.

In short, the aforementioned proposals are unlikely to meaningfully fortify the ICC’s currently toothless enforcement arm. For this reason, the international community should seriously consider facilitating a system of international bounty hunters as a means of capturing ICC-indicted fugitives.

III. International Bounty Hunters

A. Bounty Hunters in the United States: A Prototype

Bounty hunters tend to conjure up images from popular culture. We associate the trade with Django Unchained or Duane Lee “Dog” Champman and his television show, Dog the Bounty Hunter.

Less publicized, however, is the reality that bounty hunters exist and are actually quite effective. In the United States, bounty hunters capture approximately 90% of the roughly 35,000 fugitives who jump bail each year.24 Their efforts save law enforcement agencies tremendous amounts of financial and human capital.25

How and why are American bounty hunters so successful? The answer, according to Professor Jonathan Dimmer, lies in an 1872 U.S. Supreme Court case, Taylor v. Taintor. The court held:

When bail is given, the principal is regarded as delivered to the custody of his sureties. [The latter’s] dominion is a continuance of the [former’s] original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner. In 6 Modern it is said: ‘The bail have their principal on a string, and may pull the string whenever they please, and render him in their discharge.’ The rights of the bail in civil and criminal cases are the same. They may doubtless permit him to go beyond the limits of the State within which he is to answer.26

Thanks to Taylor, bounty hunters enjoy a very broad set of rights. In fact, Drimmer notes that Taylor provides bounty hunters with “the same rights of search and arrest as a sheriff over an escaping prisoner.”27 Bounty hunters are even “legally entitled to break into a suspect’s home and use whatever force is necessary, including deadly force, to arrest a fugitive.”28

Unsurprisingly, these rights are critical to bounty hunters’ success. Christopher M. Supernor, author of the leading article on point, writes:

Financial incentives alone do not provide bounty hunters the necessary tools to hunt fugitives. Domestic bounty hunters could not exist without the legal immunity for the forceful acts necessary to arrest a fugitive. Without this immunity, domestic bounty hunters would face criminal and civil liability for their forceful acts in apprehending fugitives.”29

In this sense, Taylor encourages and facilitates bounty hunters by guaranteeing their legal protection “for the forceful acts necessary to arrest a fugitive.”30 As will be discussed below, ensuring parallel protections in the global context will be equally vital to the success of international bounty hunters.

Prior to shifting to this analysis, however, it is worth noting that American law limits the profession to private, non-state actors only.31 As Drimmer succinctly summarizes, “although bounty hunters and bondsmen functioned as state proxies for the pretrial criminal process, they were not considered state actors.”32 This distinction, as discussed below, must also be exported to the international arena.

B. Internationalizing the American System

The American bounty hunter system serves as an instructive prototype for the international community. Indeed, the latter’s adoption of this system could very well mitigate the Court’s current arrest problem. Therefore, despite its general anathema to do so, the international community should follow the American precedent. Two aspects of this system are particularly worthy of emulation: immunizing bounty hunters and limiting the craft to private, non-state actors.

1. Immunizing International Bounty Hunters

First and foremost, the international community should grant bounty hunters legal immunity from every state’s domestic laws for any “forceful acts” committed while arresting indicted war criminals.33 Such immunity is imperative: the international bounty hunters who captured Dragan Nikolić and Stevan Todorović were subsequently convicted of kidnapping by a Serbian court and, ultimately, were sentenced to several years in prison.34 Accordingly, Supernor argues that an “efficient system of international bounty hunters cannot be established without legal immunity for the forceful acts necessary to apprehend and deliver a war criminal to trial.”35

Fortunately, securing this immunity is not a pipe dream. Although states obviously retain the right to criminalize conduct occurring on their own soil, the international community has made certain exceptions to this rule when seeking to broadly immunize specific groups of persons from domestic prosecution.36 For example, UN representatives, “while exercising their functions and during the journey to and from the place of meeting,” are “immune from personal arrest or detention and from seizure of their personal baggage and, in respect of words spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every kind.”37 This exception’s rationale—rooted in the international community’s desire to foster the UN’s work and, by extension, transnational cooperation and justice—is equally applicable to this paper’s proposal. Indeed, it is difficult to contend that a system of international bounty hunters, tasked with arresting the world’s most wanted fugitives, fails to promote these very same objectives. Therefore, as it did with respect to UN officials, the international community could and should exempt international bounty hunters from domestic criminal prosecution.

How the international community might actually achieve this result is a more complicated inquiry. Theoretically, a treaty could guarantee this immunity. In practice, however, a treaty would inevitably bind consenting states only, which would in turn create safe havens for fugitives (a la the Rome Statute) and thereby impede international bounty hunters’ efforts.38

A UNSC resolution, by contrast, is a far more viable option. Critically, Articles 25 and 48 of the Charter of the United Nations specify that UNSC resolutions are binding on all UN Members.39 Furthermore, the Charter grants the UNSC broad powers with respect to enforcing international peace and security. Article 39 states: “The Security Council shall determine the existence of any threat to the peace…and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”40 Together, these articles afford the UNSC “very broad discretion in crafting enforcement mechanisms.”41

Evidently, the UNSC is in fact legally empowered to pass a resolution shielding international bounty hunters from states’ domestic laws. A system of legally-protected international bounty hunters, capable of actually arresting ICC fugitives, clearly satisfies Article 39’s “maintain and restore international justice” provision: apprehending ICC-fugitives not only deters future atrocities, but also legitimizes the ICC and emboldens the Court’s stature and work.42 As in the American context, such immunity would ensure international bounty hunters’ success.

2. Private Actors Only

In addition to following the U.S. precedent vis-à-vis immunizing bounty hunters, the international community should also follow America’s lead in limiting such immunity to private, non-State actors only. In fact, the international community has little choice in the matter: Article 2(4) of the U.N. Charter explicitly prohibits Member States from using force against each other.43 Critically, however, this provision does not ban “the abduction of an individual from a foreign state by an international bounty hunter…[who] is a private party.”44 Because government-sponsored abductions violate international law, global bounty hunters, like their American counterparts, must be private, non-state actors.45

C. International Bounty Hunters in Practice

Having established that a system of international bounty hunters is in fact legally viable, it is worth highlighting why this solution is more preferable than those discussed above.

First, it is far simpler and cheaper to fund international bounty hunters than it is an international police force. The United States, for example, very recently announced the expansion of the War Crimes Rewards Program. The Department of State is now offering “up to $5 million for information that leads to the arrest, transfer, and conviction” of three war criminals (Joseph Kony, Okot Odhiambo, and Dominic Ongwen).46 Presumably, other nations and possibly even NGOs would be similarly inclined to finance rewards for the capture of ICC-indicted fugitives. What is clear, however, is that the cost of such rewards pale in comparison to those of a standing paramilitary apparatus.

In fact, the most complicated funding-related question in this context is not one of source but of timing: when should international bounty hunters be paid? Supernor recommends rewarding bounty hunters only upon their successful delivery of a living war criminal to The Hague. This approach is logical, as it ensures that international bounty hunters do not become “international assassins.”47

In addition to avoiding the thorny funding problem, a system of international bounty hunters also dodges the difficult operational issues triggered by the Scheffer and Cooper/Kohler proposals. Unlike an IMS or specialized unit, a system of international bounty hunters would not be run by a politicized and non-representative entity. Rather, it would consist solely of private men and women acting of their own volition.

In fact, Supernor goes so far as to argue that international bounty hunters need not even be licensed:

Many individuals who decide to forcefully capture an indicted war criminal may do so only as the result of a one-time opportunity rather than a decision to pursue a career as an international bounty hunter. The best person to apprehend a particular war criminal might not be the full-time professional bounty hunter but an acquaintance, friend, business partner, political rival, or estranged spouse of the war criminal. If licenses were not required, individuals who have no interest in a career as a professional bounty hunter would be free to capture fugitive war criminals.48

Here, however, Supernor’s conclusion is irresponsible. Unleashing a system of unlicensed actors amounts to recklessness. Instead, the UNSC or ICC should be tasked with licensing international bounty hunters. Such a measure guarantees that these actors receive a modicum of training and simultaneously affords the international community a means of preventing certain individuals, like convicts, from participating in high-profile manhunts. Naturally, the UNSC or ICC would merely license bounty hunters; once licensed, these huntsmen would remain fully independent practitioners. Therefore, unlike the Scheffer and Cooper/Kohler proposals, neither the UNSC nor the ICC would be charged with managing or overseeing those attempting to capture ICC-fugitives.

Finally, a system of international bounty hunters not only evades the funding and operational issues associated with the pair of “international force” proposals, but also avoids the pitfalls plaguing both Wald’s “conditionality” scheme and Scheffer’s first recommendation. These two suggestions—conditioning membership into international organizations on a state’s willingness to comply with ICC arrest requests, and encouraging States Parties’ domestic legislatures to pass laws ensuring their compliance with such requests—lack universal appeal and application. By contrast, because UNSC resolutions are binding on every Member State, international bounty hunters would have the authority to arrest fugitives on any Member State’s soil.

There is, however, one caveat: international bounty hunters, whether unlicensed or licensed, would be responsible for securing their own, legal means of entering a state’s territory.49 Otherwise, “illegal aliens, drug traffickers, and other international criminals could falsely claim that they were acting as international bounty hunters when caught entering a State illegally.”50 Notwithstanding this minor limitation, international bounty hunters could freely operate throughout the globe (save Kosovo, Taiwan, Vatican City, and Palestine). The other proposals precisely lack this important capability.

IV. Final Thoughts

Apparently, relying on international bounty hunters to track and capture ICC indictees is not an entirely farfetched solution to the Court’s arrest problem. The American paradigm offers powerful precedent that such a system could in fact work. Moreover, the international community, through the UNSC, is legally empowered to secure the necessary immunity for bounty hunters to effectively carry out their missions. Finally, the troubling issues undermining the traditional solutions to this problem are seemingly inapplicable to a system of bounty hunters.

Naturally, there are problems with this paper’s proposal. For one, just because the UNSC is capable of passing a resolution hardly guarantees that it would actually do so. Moreover, insofar as the ICC indicts the so-called “worst of the worst,” including heads of state and senior military officials, one may fairly question whether international bounty hunters could actually access, and no less capture, the Court’s indictees.

These and several other concerns are legitimate. However, given that the ICC’s inability to secure the arrest or surrender of its indictees continues to threaten the Court’s legitimacy, any and all legal remedies, however imperfect, should be fully explored. At the very least, this solution would put fugitives on notice that the international community is unafraid to think outside of the box.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   In addition to Kony and al-Bashir, Okot Odihambo, Dominic Ongwen, Vinceti Otti (purportedly deceased), Ahmed Haorun, Ali Kushayb, Abdel Rahim Hussein, and Sylvestre Mudacumura all remain at large. Moreover, Saif al-Islam Gaddafi and Abdullah Senussi, though in Libyan custody, are wanted by the Court. See Mark Kerston, Libya vs. The ICC: The Stalemate Over Saif and Senussi, Global Policy Forum (Aug. 15, 2012), available online. ↩

2. 2.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Article 89. ↩

3. 3.

   See Rome Statute, Article 86. See also Article 87 (stating that “The Court shall have the authority to make requests to States Parties for cooperation”), Article 88 (requiring States Parties to “ensure that there are procedures available under their national laws for all forms of cooperation which are specified in [the Statute]”), and Article 93 (“requiring States Parties to provide “any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.”) ↩

4. 4.

   Rome Statute, Article 87. ↩

5. 5.

   Richard H. Cooper & Juliette Voinov Kohler, Moving From Military Intervention to Judicial Enforcement: The Case for an International Marshals Service, in Responsibility to Protect: The Global Moral Compact for the 21st Century, 243, 252, (Cooper & Kohler, eds., 2009). ↩

6. 6.

   There is one exception to this rule. Non-states parties must only cooperate with Court requests in this context if “the UNSC referred the situation to the Court and, within its referral, explicitly specifies that non-states parties are obligated to arrest the indictee and send him to The Hague. David Scheffer, Video Lecture on the Arrest Question, ICC Forum (Feb. 5, 2013), available online. ↩

7. 7.

   Christopher M. Supernor, International Bounty Hunters for War Criminals: Privatizing the Enforcement of Justice, 50 A.F. L. Rev. 215, 225 (2001). ↩

8. 8.

   See Scheffer, supra note 6. ↩

9. 9.

   Id. ↩

10. 10.

    Id. ↩

11. 11.

    Id. ↩

12. 12.

    Id. ↩

13. 13.

    See Cooper & Kohler, supra note 5, at 255-59. ↩

14. 14.

    Id. ↩

15. 15.

    Patricia M. Wald, Apprehending War Criminals: Does International Cooperation Work?, 27 Am. U. Int’l L. Rev. 229, 246 (2012). ↩

16. 16.

    Id. at 244. ↩

17. 17.

    Id. at 243-45 ↩

18. 18.

    See ICC Prosecutor Urges UN to Consider Sudanese Arrests, Voice of America (Jun. 5, 2012), available online. ↩

19. 19.

    A database of all UNSC resolutions can be found on the Security Council’s website. See Security Council Resolutions, UNSC, available online (last visited May 9, 2013). ↩

20. 20.

    ICC FAQ, ICC Watch, available online, (last visited May 9, 2013). ↩

21. 21.

    Assessment of Member States’ contributions to the United Nations regular budget for 2012, United Nations Secretariat (Dec. 27 2011), available online. ↩

22. 22.

    How the European Union and the United Nations cooperate, UNRIC, available online, (last visited May 9, 2013). ↩

23. 23.

    See Cooper & Kohler, supra note 5, at 258. ↩

24. 24.

    Rachel Clarke, Above the Law: US Bounty Hunters, BBC News, Jun. 19, 2003, available online. See also Supernor, supra note 7, at 232. ↩

25. 25.

    See Clarke, supra note 24. ↩

26. 26.

    Taylor v. Taintor, 83 U.S. 366, 371-2 (1872). ↩

27. 27.

    Jonathan Drimmer, When Man Hunts Man: The Rights and Duties of Bounty Hunters in the American Criminal Justice System, 33 Hous. L. Rev. 731, 752 (1996). ↩

28. 28.

    Id. at 750-53. ↩

29. 29.

    See Supernor, supra note 7, at 234. ↩

30. 30.

    Id. ↩

31. 31.

    See In Nicolls v. Ingersoll, 7 Johns. 145, (N.Y. 1810) (holding that “the power of taking and surrendering is not exercised under any judicial process, but results from the nature of the undertaking by the bail.”). ↩

32. 32.

    See Drimmer, supra note 27, at 754-55. See also Ryan M. Porcello, International Bounty Hunter Ride-Along: Should U.K. Thrill Seekers Be Permitted to Pay to Experience a Week in the Life of a U.S. Bounty Hunter?, Vand. J. Transnat’l L. 953, 969 (2002). ↩

33. 33.

    See Supernor, supra note 7, at 235. ↩

34. 34.

    Id. at 217. ↩

35. 35.

    Id. at 235. ↩

36. 36.

    Id. ↩

37. 37.

    See Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, 1 U.N.T.S. 15, Article IV. ↩

38. 38.

    See Supernor, supra note 7, at 236. ↩

39. 39.

    See Charter of the United Nations, [hereinafter U.N. Charter], Articles 25, 48, available online. Currently, only Taiwan, Kosovo, Palestine, and Vatican City are not Members of the UN. The latter two, however, are permanent non-Member Observer States. ↩

40. 40.

    U.N. Charter, supra note 39, Article 39. See also Article 41 (stating that the UNSC “may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measure.”) and Article 42 (stating that the UNSC “may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”) ↩

41. 41.

    See Supernor, supra note 7, at 238. ↩

42. 42.

    Id. ↩

43. 43.

    See U.N. Charter, supra note 39, Article 2(4) (“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”) ↩

44. 44.

    See Supernor, supra note 7, at 239. ↩

45. 45.

    See Porcello, supra note 32, at 978. ↩

46. 46.

    John Kerry, More Work to Bring War Criminals to Justice, Huff. Post, Apr. 3, 2013, available online. ↩

47. 47.

    See Supernor, supra note 7, at 246. ↩

48. 48.

    Id. at 244. ↩

49. 49.

    Id. at 242. ↩

50. 50.

    Id. ↩

II. Sovereignty Considerations7

One of the most fundamental tenets of State sovereignty is the ability to exclude any other State from exercising police powers within one’s borders. Thus, when agents of one State enter another in order to abduct a suspect, significant sovereignty concerns are raised. Transnational abductions fuel tensions between the States and might lead to an international incident.8 However, some suspects wanted for extreme international crimes are so dangerous that more international destabilization might occur if they are left unarrested than if sovereignty is breached in order to gain custody over the person. In cases where the injured State does not protest (i.e., there is no danger of an international incident), the ICC can assert jurisdiction. Furthermore, because the ICC deals with the most dangerous criminals in the world, case law indicates that sovereignty concerns should not divest the court of jurisdiction over a transnationally abducted individual.

Because sovereignty violations raise the issue of a potential international incident, the level of protest by the injured State sometimes enters a court’s calculus when determining whether asserting jurisdiction is proper. In Öcalan v. Turkey, the European Court of Human Rights (ECHR) considered whether a Turkish court acted lawfully in asserting jurisdiction over a suspected terrorist who was abducted in Kenya.9 The suspect, Öcalan, was staying at the Greek embassy in Kenya and was asked to leave the country by Kenyan officials after Kenya learned about Öcalan’s past.10 As Öcalan was being driven to the airport as part of a convoy, his car suddenly split from the convoy and was taken to the international transit area of the airport, where Turkish officials arrested him.11 In determining that the Turkish court’s jurisdiction was proper, the ECHR found no violation of Kenyan sovereignty or international law because the arrest did not lead to any “international dispute between Kenya and Turkey” and “[t]he Kenyan authorities did not lodge any protest.”12 While the decision did not discuss what would have been the case had the Kenyan government protested, it at least indicated that asserting jurisdiction over an abductee can be acceptable in the absence of an official protest by the injured State.13

Additionally, courts have found jurisdiction to be proper even in the face of an injured State’s protest when the suspect is wanted for certain universally condemned offenses. The most relevant case for this comment’s analysis is the International Criminal Tribunal for the Former Yugoslavia (ICTY) trial of Dragan Nikolić. Nikolić was charged with multiple counts of crimes against humanity and war crimes for his role as commander of a detention camp in Bosnia.14 Serbian officials refused to arrest Nikolić, so certain unknown private individuals kidnapped Nikolić in Serbia and brought him to NATO forces in Bosnia, where he was officially arrested.15 Nikolić challenged jurisdiction based on the fact that his arrest was unlawful. This challenge was ultimately ruled on by the Appeals Chamber, which, after analyzing domestic cases from around the world, noted “in cases of crimes such as genocide, crimes against humanity and war crimes which are universally recognized and condemned as such (‘Universally Condemned Offenses’), courts seem to find in the special character of these offenses and, arguably, in their seriousness, a good reason for not setting aside jurisdiction.”16 In the opinion of the Appeals Chamber, “the damage caused to international justice by not apprehending fugitives accused of serious violations of international humanitarian law is comparatively higher than the injury, if any, caused to the sovereignty of a State by a limited intrusion in its territory.”17 Thus, the court held that no matter how bad an intrusion on a State’s sovereignty, the court should not divest itself of jurisdiction if the accused is wanted for universally condemned offenses.18

As with the subject-matter jurisdiction of the ICTY, the ICC’s jurisdiction covers the universally condemned offenses of war crimes, crimes against humanity, and genocide.19 Perpetrators of these offenses disrupt the international order and must be dealt with swiftly. Furthermore, there has been no transnational abduction case that involved these crimes in which a court refused to assert jurisdiction on the basis of a sovereignty violation. Thus, any injury to the sovereignty of a State due to an abduction should not divest the ICC of jurisdiction to try the suspect, especially when the injured State decides not to protest.

III. Violations of Procedure

The Rome Statute makes clear that during an investigation, a person “shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.”20 Furthermore, “[a] person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that… (b) The person has been arrested in accordance with the proper process.”21 Illegal abductions violate the proper process by definition; however, it does not necessarily follow that a case must be dismissed due to this violation.22 For dismissal determinations, what seems to matter in such cases is whether the State executive or prosecution was involved in the abduction, or, in other words, whether the prosecution comes to the court with “clean hands.”23

Some jurisdictions refuse to try a case if the State was involved in the abduction. In State v. Ebrahim, the South African Supreme Court decided not to assert jurisdiction over the defendant because he was abducted in Swaziland “by agents of the South African state.”24 The court reasoned that “[w]hen the state is a party to a dispute… it must come to court with ‘clean hands.’ When the state itself is involved in an abduction across international borders, as in the present case, its hands are not clean.”25 This approach was followed by Zimbabwe’s Supreme Court in State v. Beahan.26 In that case, the state secured custody over the defendant by deliberately circumventing extradition procedure. The opinion held that a “court should decline [jurisdiction when the defendant’s appearance] has been facilitated by an act of abduction undertaken by the prosecuting State. … For abduction is illegal under international law, provided the abductor was not acting on his own initiative and without the authority or connivance of his government.”27

Other jurisdictions hold that the judges have discretion to drop a case if the State was involved in the abduction. The UK House of Lords exercised this discretion in Ex parte Bennett when the English police decided not to use the extradition process to secure the defendant’s custody from South Africa.28 Lord Griffiths noted that “[e]xtradition procedures are designed not only to ensure that criminals are returned from one country to another but also to protect the rights of those who are accused of crimes by the requesting country.”29 He added that if a court were to allow such a case to go forward, it “would be flouting the extradition procedures and depriving the accused of the safeguards built into the extradition process for his benefit.”30 An Australian case, Levinge v. Director of Custodial Services, also held that the court has discretion to assert jurisdiction. “Where a person… is brought… before a court in this State, that court has undoubted jurisdiction to deal with him or her. But it also has discretion not to do so, where to exercise its discretion would involve an abuse of the court’s process.”31 Because there was no showing that the Australian executive was directly or indirectly involved in the unlawful conduct, the case was allowed to proceed.32

One case that found it irrelevant that the prosecuting State was directly involved in the defendant’s abduction is Attorney-General of the Government of Israel v. Eichmann.33 In that case, the defendant was kidnapped from Argentina by Israeli agents to be put on trial in Israel for crimes against humanity and war crimes committed during the Holocaust.34 The court held that “there is no immunity for a fugitive offender save in the one and only case where he has been extradited by the country of asylum to the country applying for extradition by reason of a specific offense, which is not the offense for which he is being tried;” however, because Israel did not use the extradition treaty to secure custody, “Israel [was] not bound by any agreement with Argentina to try the accused for any other specific offense.”35 The court stated that any other argument based on abduction had to do with an injury to the State of Argentina and was therefore not an argument that the defendant had standing to make.36 Additionally, the court claimed that it was “established rule of law” that a defendant “may not oppose his trial by reason of the illegality of his arrest.”37 Thus, jurisdiction was found to be proper because of the universal character of the offense and because the defendant had no right to challenge how he was brought to court. However, this case has been seen as an outlier in terms of procedural rights and is therefore not authoritative on the subject. The Rome Statute ensures that the ICC will apply international human rights standards,38 and it is assumed that defendants will have the ability to raise sovereignty violations in their defense and the ability to challenge how they arrived at the court.39

Finally, in the only international criminal tribunal case to deal with the matter, the ICTY found in Nikolić that the proceedings must “fully respect due process of law,” which includes “questions such as how the Parties have been conducting themselves in the context of a particular case and how an Accused has been brought into the jurisdiction of the Tribunal.”40 The tribunal based this, in part, upon standards “contained in article 14 of the International Covenant on Civil and Political Rights.”41 After approving the Ebrahim case and noting that “the Prosecution coming to a Trial Chamber of this Tribunal” must do so with “clean hands,” the court found jurisdiction was proper because the abduction could not “be attributed to SFOR or the Prosecution.”42

The majority of cases seem to put great weight on whether the prosecution was involved in deliberately circumventing proper arrest procedures, deciding not to assert jurisdiction if the prosecution’s hands are not clean. Additionally, the precedent most on-point takes this approach and affirms procedural obligations laid down in international human rights instruments such as the International Covenant on Civil and Political Rights. The Rome Statute holds that the Court shall apply law “consistent with internationally recognized human rights.”43 Thus, there is strong authority to hold that the ICC should divest itself of jurisdiction if the Office of the Prosecutor has been involved in orchestrating a defendant’s abduction.

IV. Humane Treatment

A major concern with unlawful abductions is with the treatment of the abductee. Those who kidnap others typically do not have much respect for the rule of law, and they are often unusually violent with their subjects. In instances of egregious abuse, many courts refuse to assert jurisdiction, thus removing the incentive to treat suspects inhumanely. Therefore, the ICC should not try an abducted defendant if his or her abductor has severely abused the defendant.

In Barayagwiza v. The Prosecutor, the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) elaborated on the abuse of process doctrine, noting that courts should decline jurisdiction whenever “exercis[ing] that jurisdiction in light of serious and egregious violations of the accused’s rights would prove detrimental to the court’s integrity.”44 The ICTY affirmed this reasoning in Nikolić in the context of a defendant’s pre-trial treatment. The chamber held that “where an accused is very seriously mistreated, maybe even subjected to inhuman, cruel or degrading treatment, or torture, before being handed over to the Tribunal, [it] may constitute a legal impediment to the exercise of jurisdiction over such an accused.”45 Importantly, the judges noted that it did not matter who was responsible for the abuse. “[E]ven without [involvement by the Prosecution,] this Chamber finds it extremely difficult to justify the exercise of jurisdiction over a person… after having been seriously mistreated.”46

Some courts in the United States have held that severe abuse of an accused should result in jurisdiction divestment. For instance, in United States v. Toscanino, the defendant had been kidnapped in Uruguay and was “incessantly tortured” with the knowledge and participation of United States agents before arriving in the United States.47 The Second Circuit held that “due process [requires] a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government’s deliberate, unnecessary and unreasonable invasion of the accused’s constitutional rights.”48 Thus, the court “could not tolerate such abuse without debasing ‘the process of justice.’”49 However, since Toscanino, there have been no cases of an abductee’s abuse so shocking to the conscience that United States courts have refused jurisdiction, and some courts refuse to follow the Toscanino rule.50

In addition to ensuring due process standards in conformance with “internationally recognized human rights,” the Rome Statute ensures in Article 55(1)(b) that no person “[s]hall be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment.”51 As such, the ICC should treat its accused with as much dignity as do other domestic courts as well as other international tribunals, such as the ICTY and ICTR. Because these other courts refuse to assert jurisdiction over a defendant who has been egregiously abused before reaching trial, it would be improper for the ICC to do otherwise.

V. Conclusion

Unlawful abductions raise several concerns about whether asserting jurisdiction over the abducted person is proper. Such abductions can violate State sovereignty, degrade a court’s integrity by condoning breaches of the rule of law, and increase the risk that suspects will be treated inhumanely. Being a respected international institution based on international human rights standards, the ICC must strive to be an exemplar of fair process for the accused. At the same time, it must be recognized that the Court has to deal with very dangerous criminals who tend to evade capture. Due to the universally condemned offenses that the ICC has jurisdiction over, sovereignty violations should not preclude the exercise of jurisdiction in cases of abduction. Furthermore, the ICC can conform to international standards when it asserts jurisdiction over abducted defendants so long as the Prosecutor comes to trial with “clean hands” and so long as the defendant was not seriously abused before trial.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   International Criminal Court, Prosecutions, available online (last visited May 1, 2013). ↩

2. 2.

   Most Sudanese fugitives are still active in politics in Sudan. For instance, Omar Hassan Ahmad al-Bashir is the current President of Sudan and Abdel-Rahim Mohamed Hussein is the current Minister of Defense of Sudan. See Sudan Tribune, Omar Hassan Ahmad al-Bashir, available online, (last visited May 1, 2013); Sudan Tribune, Abdel-Rahim Mohamed Hussein, available online, (last visited May 1, 2013). Additionally, Bosco Ntaganda’s Goma residence was known to many in the years leading up to his surrender. See David Smith, Hunting the Terminator: Congo continues search for Bosco Ntaganda, The Guardian, Nov. 28, 2012, available online, (last visited May 1, 2013). ↩

3. 3.

   See David Kramer, Comment, The Viability and Efficacy of International Bounty Hunters, ICC Forum (Feb. 24, 2014), available online. ↩

4. 4.

   See, e.g., State v. Ebrahim 1991 (2) SALR 553 (S. Afr.); State v. Beahan, 103 I.L.R. 293 (1991) (Zim.). ↩

5. 5.

   See, e.g., CrimC (Jer) 40/61 Attorney-General of the Government of Israel v. Eichmann, 36 I.L.R. 5 (1961) (Isr.) [hereinafter Eichman]. ↩

6. 6.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], article 21. ↩

7. 7.

   It is assumed that a defendant can have standing to raise sovereignty violations as a defense. Some countries do not allow defendants to argue claims typically reserved for the State. See Eichmann, supra note 5, at ¶ 44. However, it is the view of the International Criminal Tribunal for Yugoslavia that defendants are entitled to a “full defence,” and are therefore able to raise defenses due to sovereignty violations. See Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 55 (ICTY Oct. 2, 1995). ↩

8. 8.

   Argentina protested vigorously after Adolf Eichmann was abducted by Israeli agents, leading to the involvement of the United Nations Security Council (UNSC) to resolve the dispute. See S.C. Res.138, U.N. Doc. S/RES/138 (Jun. 23, 1960). ↩

9. 9.

   Öcalan v. Turkey, 2005-IV ECHR at ¶¶ 18, 61. ↩

10. 10.

    Id. at ¶¶ 15-17. ↩

11. 11.

    Id. ↩

12. 12.

    Id. at ¶ 95. ↩

13. 13.

    Even if a State protests, it is unclear whether the remedy for a sovereignty violation should be the dismissal of the case. Some argue that it is only customary international law to dismiss a case if a State protests and also demands the return of the fugitive. Paul Michell, English-Speaking Justice: Evolving Responses to Transnational Forcible Abduction After Alvarez-Machain, 29 Cornell Int’l L.J. 383, 427 (Apr. 1996). ↩

14. 14.

    Prosecutor v. Nikolić, Case No. IT-94-2-PT, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, ¶ 2 (ICTY Oct. 9, 2002) [hereinafter Nikolic I]. ↩

15. 15.

    Id. at ¶ 13 (discussing Serbia’s refusal to cooperate); Christopher M. Supernor, International Bounty Hunters for War Criminals: Privatizing the Enforcement of Justice, 50 A.F. L. Rev. 215, 217 (2001) (discussing the arrest by bounty hunters). ↩

16. 16.

    Prosecutor v. Nikolić, Case No. IT-94-2-AR73, Decision on Interlocutory Appeal Concerning Legality of Arrest, ¶ 24 (ICTY June 5, 2003) [hereinafter Nikolic II]. ↩

17. 17.

    Id. at ¶ 25. ↩

18. 18.

    Id. The Nikolić court may have discounted sovereignty concerns due to the “vertical” nature of the court in relation to States. See Nikolic I, supra note 14 at ¶ 100 (“[I]n this vertical context, sovereignty by definition cannot play the same role.”). A similar vertical relationship exists between the ICC and States parties as well as non-States parties that are obligated to cooperate with the Court due to UNSC resolutions. While the relationship is less vertical between the ICC and those States that are not obligated to cede some sovereignty to the Court, the Nikolić rule should still control. ↩

19. 19.

    See S.C. Res. 827, Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, arts. 2-5, U.N. Doc. S/RES/827 (May 25, 1993), available online; Rome Statute, art. 5. ↩

20. 20.

    Rome Statute, art. 55(1)(d). ↩

21. 21.

    Rome Statute, art. 59(2). ↩

22. 22.

    It is possible that the proper remedy under the Rome Statute is merely compensation for the wrong. See Rome Statute, art. 85. ↩

23. 23.

    State v. Ebrahim, supra note 4. ↩

24. 24.

    Id. ↩

25. 25.

    Id. ↩

26. 26.

    State v. Beahan, supra note 4. ↩

27. 27.

    Id. ↩

28. 28.

    Ex parte Bennett, [1994] 1 A.C. 42 (H.L.) (appeal taken from Eng.), available online. ↩

29. 29.

    Id. ↩

30. 30.

    Id. ↩

31. 31.

    Levinge v Director of Custodial Services, 9 NSWLR 546 (1987) (Court of Appeal) (Austl.). ↩

32. 32.

    Id. ↩

33. 33.

    See supra note 5. ↩

34. 34.

    Id. at ¶ 1. ↩

35. 35.

    Id. at ¶ 52. ↩

36. 36.

    Id. ↩

37. 37.

    Id. at ¶ 41. ↩

38. 38.

    Rome Statute, art. 21(3). ↩

39. 39.

    See supra note 7. ↩

40. 40.

    Nikolic I, supra note 14, ¶¶ 110-11. ↩

41. 41.

    Id. ↩

42. 42.

    Id. at ¶¶ 111, 113. ↩

43. 43.

    Rome Statute, art. 21(3). ↩

44. 44.

    Jean-Bosco Barayagwiza v. Prosecutor, Case No. ICTR-97-19, Decision, ¶ 74 (Nov. 3, 1999). ↩

45. 45.

    Nikolic I, supra note 14, ¶ 114 (emphasis added). ↩

46. 46.

    Id. ↩

47. 47.

    United States v. Toscanino, 500 F.2d 267, 269-70 (2d Cir. 1974). ↩

48. 48.

    Id. at 275. ↩

49. 49.

    Id. at 276. ↩

50. 50.

    See e.g., Matta-Ballesteros v. Henman, 896 F.2d 255, 263 (7th Cir. 1990) (“We therefore conclude that Toscanino, at least as far as it creates an exclusionary rule, no longer retains vitality and therefore decline to adopt it as the law of this circuit.”). ↩

51. 51.

    Rome Statute, art. 55(1)(b). ↩

II. Functional and Personal Immunities Under Customary International Law.

Under customary international law, there are two types of immunities for government officials: functional immunities (ratione materiae), or diplomatic immunities and personal immunities (ratione personae), or head of State immunities. Both types of immunities protect government officials from civil and criminal jurisdiction in foreign national tribunals.1 Functional immunities protect officials indefinitely for conduct committed as part of their official duties in their official capacity.2 The immunity applies even after the official has abdicated his or her official position with that government, so even former officials can invoke functional immunity.3 However the immunity attaches only to acts committed while the person served in his or her official capacity.4 Functional immunity is based on the rationale that diplomats must be able to conduct their work without fear of prosecution in the receiving state, and because their actions are considered acts of the State, not acts of the individual acting on behalf of the State.5 There are however, exceptions. Serious international crimes such as genocide, crimes against humanity, and war crimes do not receive protection under functional immunities because they can never be considered as being part of government duties.6 This is in accord with norms permitting the exercise of universal jurisdiction.7

A small group of senior government officials including heads of State, heads of government, foreign ministers, and diplomats on special mission in foreign States can simultaneously be protected by personal immunities by virtue of their official high-ranking position.8 The immunity attaches to their status or office.9 Absolute personal immunities are accorded to these individuals for acts conducted as part of official duties, as well as any other private acts.10 Personal immunities only apply while these officials hold the applicable high-ranking position.11 Once they abdicate their official position, they are only protected by functional immunity for acts that were committed as part of their official duties while still in office.12 The rationale for personal immunity is to prevent a foreign State from exercising and even abusing jurisdiction over another State’s high-ranking officials, to facilitate the smooth conduct of foreign relations and cooperation between States, and to allow the sending State to function properly under the leadership of its senior representatives.13 Even the issuance of an arrest warrant for such an official, without any steps being take to actually arrest him or her, would be a violation of customary international law.14

Unlike with functional immunities, personal immunities protect senior officials from civil and criminal prosecution in foreign national courts even for international crimes such as war crimes or crimes against humanity.15 However, there seems to be an exception under customary international law for international crimes committed by high-ranking government officials vis-à-vis international tribunals. Even if this is not a universally agreed upon customary international law norm, at the very least it is an emerging customary norm. Jurisprudence in recent international criminal law tribunals provides support for the existence, or at least development, of this norm. This norm has been affirmed in the Arrest Warrant case before the International Court of Justice, (“ICJ”)16 the Charles Taylor case before the Special Court for Sierra Leone,17 the Augusto Pinochet case before the British House of Lords,18 and in the statutes of the Nuremberg Tribunal,19 the International Criminal Tribunal for the Former Yugoslavia,20 the International Criminal Tribunal for Rwanda,21 and the ICC.22 This recent trend in international criminal prosecutions of sitting heads of State shows that derogation from norms requiring personal immunities is permitted for international crimes in international courts.

III. The Tension Between Article 27 and Article 98(1) of the Rome Statute.

There is a tension between Article 27 and Article 98(1) of the Rome Statute. The issue is whether States Parties can cooperate in the arrest of nationals of non-States Parties for whom arrest warrants have been issued, without violating their customary international obligations to provide certain immunities to senior officials of non-States Parties. If the answer is no, as some scholars have suggested, this presents a challenge to arresting those persons.

Article 27 of the Rome Statute supports the existing, or at least emerging, customary international law norm that incumbent senior government officials stand behind personal immunities to avoid being prosecuted for international crimes in international criminal tribunals. Article 27 states:

(1) This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. (2) Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.23

One hundred twenty two countries have ratified the Rome Statute to date. They have thereby waived personal immunity for their senior officials who may be subject to jurisdiction under the ICC, and therefore must surrender their nationals, for whom arrest warrants have been issued, to the ICC.24 Nationals of States Parties may not assert personal immunity (or functional immunity) as a substantive defense before the Court, and an individual’s high-ranking government status is not a bar to either the jurisdiction of the Court or a finding of individual criminal responsibility for that person.25 Article 27(1) therefore removes a substantive defense as well as confers jurisdiction. Under Section IX of the Rome Statute, States Parties are also obligated to cooperate with the ICC, including with requests for cooperation and requests for the arrest and surrender of persons subject to arrest warrants.26 When an indicted person of one State Party is on the territory of a second State Party, an arrest warrant has been issued for the indicted person, and the Court has submitted a request for the arrest and surrender of that person to the second State Party, the Second State Party has an obligation to arrest that individual and transfer him or her to the custody of the ICC.

Article 27 should be interpreted as removing immunities with respect to both the ICC and national authorities acting in response to a request for assistance or request for arrest and surrender issued by the Court.27 To find that Article 27 does not remove immunities between States at the national level “would render parts of that provision practically meaningless” and create a serious obstacle to effecting arrests.28 The ICC does not have its own police force so it primarily has to rely on States to voluntarily turn over their nationals who are subject to arrest warrants.29 If the ICC could only rely on securing the custody of suspects by relying on States to waive immunity (in which case Article 27 would not be applicable) and surrender the suspect, or on suspects to voluntarily appear before the Court, the State or suspect would never claim immunity and the Court would never need to apply Article 27 at all.30 Such a result would be contrary to that required by canons of treaty interpretation: “[A] treaty interpreter must read all applicable provisions of a treaty in a way which gives meaning to all of them harmoniously and ‘is not free to adopt a reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or inutility.’”31

Furthermore, Article 27 must be read to apply between states at the national level because Article 27(2) explicitly applies “under national or international law.” The provision is unambiguous that immunities under national law, as applies by national authorities, shall not be a bar to jurisdiction. This clause “would be redundant unless it was directed at [national] authorities who would otherwise be bound by national law.”32 Hence, Article 27 should be read to remove immunities at the national level between States.

International law scholars and organizations, including the African Union, have argued that Article 98(1) of the Rome Statute provides an exemption to States Parties’ obligation to cooperate with the Court’s requests to cooperate and particularly requests to arrest and surrender suspects, particularly when the suspect is a national of a non-State Party.33 Article 98(1) states that:

[The] Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under customary international law with respect to the State or diplomatic immunity of a person or property of third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.34

Some scholars and organizations interpret “third State” to mean a non-State Party, and “State or diplomatic immunity” to mean personal immunities, or ratione personae, for incumbent senior government officials.35 If “third State” indeed refers to a non-State Party, the only circumstance in which Article 98(1) would practically apply is when the Security Council refers a situation in a non-State Party to the ICC under Article 13(b), thereby conferring jurisdiction of the ICC over nationals of that situation country and implicitly removing personal immunities of senior government officials in accord with Article 27.36 Even if “third State” also includes States Parties, Article 98(1) would not exempt a State Party from arresting a national of a sending State or “third State” that is also a Party, because States Parties have already waived immunity between States Parties under Article 27 when they ratified the Rome Statute.37 A State cannot be acting “inconsistently with its obligations under customary international law” vis-à-vis another State Party if it arrests a national of the second State Party when that individual is on the territory of the first State.38 States Parties actually have an obligation to arrest a national of a State Party for whom a request to arrest and surrender has been issued when that individual is on their territory.39 Hence, “third State” likely refers to non-States Parties.

Scholars and organizations have argued that Article 98(1) requires the Court to refrain from transmitting to States Parties requests for cooperation and requests for the arrest and surrender of a national of a non-State Party, because this would require the State Party to choose between competing obligations under the Rome Statute and customary international law.40 In order to cooperate with the request for arrest and surrender, the State Party allegedly would have to violate its obligations under customary international law that require respecting personal immunities of senior government officials of other States.41 Scholars argue that before issuing such requests for cooperation to States Parties, the Court must first seek to obtain a waiver of immunity from the State of which the indicted person is a national with respect to other States.42 Without the waiver, the request would be invalid and States Parties would not be required to cooperate.43 When the Court has obtained jurisdiction over a national of a non-State Party, there is no violation of international customary law regarding immunities as between the indicted person and/or their property and the Court.44 However, this does not automatically remove obligations regarding certain immunities owed by States Parties to non-States Parties who have not expressly waived immunity by ratification of the Rome Statute.45

However, this interpretation would create the undesirable consequence that senior officials may be immune to arrest, but not from prosecution. This would handicap the work of the Court, particularly regarding Security Council referrals. Not being able to secure the arrests of suspects would frustrate the object and purpose of the Rome Statute to end impunity for those most responsible for the “most serious crimes of concern to the international community.”46 Furthermore, this fails to consider the changing landscape of international law, where an ever-increasing value is placed on the protection of human rights. Especially in a context where national courts often fail to effectively hold perpetrators of international crimes accountable, it is critical for the Rome Statute to be interpreted in such a way that ensures the ICC can be as effective as possible in fulfilling its mandate.

IV. Article 98(1) of the Rome Statute Does Not Provide An Exemption for State Cooperation in the Arrest of Suspects of Non-States Parties and States Are Not In Violation of Competing Customary International Law Norms Regarding Immunities.

There are two primary ways to interpret the relationship between Article 27 and Article 98(1) such that there is no conflict between them. With these interpretations, States Parties are not exempted from cooperating with the Court, and would still be required to cooperate with the Court’s requests to arrest and surrender suspects, including nationals of non-States Parties. The first interpretation is that non-States Parties, over which the International Criminal Court has jurisdiction on the basis of a Security Council referral, should be treated as States Parties. The second way to interpret Article 98(1) to avoid a conflict is to read “State and diplomatic immunity” as not including personal immunities for heads of State, along with the secondary analysis that (a) customary international law no longer accords heads of State absolute immunities even before international tribunals or (b) customary international law norms regarding accountability for international crimes trump customary norms to provide personal immunities.

A. Non-States Parties Over Which the International Criminal Court Has Jurisdiction Should Be Treated As States Parties.

As several scholars have argued, a Security Council referral of a situation in a non-State Party implicitly makes the Rome Statute, including Article 27, binding on that State, and the State should be treated as a State Party.47 As argued above, questions regarding obligations to cooperate with the Court under Article 98(1) will ordinarily arise when the Security Council refers a situation in a non-State Party to the Court and thereby confers jurisdiction under Article 13(b) of the Rome Statute.

By referring the situation in Darfur to the ICC, the Security Council “intends the Court to take action (to investigate and prosecute as appropriate)…in accordance with the statutory framework provided for in the [Rome] Statute.”48 Because any investigation and prosecution done by the Court must be within the statutory framework of the Rome Statute, all States, including non-States Parties, must accept that the Court will act in accordance with this governing framework.49 When the Security Council refers a situation to the Court, the referred State is bound by Article 25 of the United Nations Charter and implicitly by the relevant Security Council resolution to accept any decisions and requests of the Court.50 This puts the State “in an analogous position to a Party to the Statute.”51

Accordingly, the referral of a situation to the ICC does more than to confer jurisdiction of the Court over the situation.52 Article 27 applies and immunities are removed between the indicted person and the Court, as well as between States at the national level.53 “This lack of immunity then means that under Article 98, a State Party to the [Rome] Statute would not be acting ‘inconsistently with its obligations under international law by arresting and surrendering’” a national of a non-State Party to the ICC in response to a request to arrest and surrender the individual.54 This means Article 98 does not apply, as it does not apply between States Parties, and States Parties must cooperate with the Court with regard to cases in that situation.55 States Parties must comply with requests for assistance regarding the arrest and surrender of indicted persons, the freezing and seizure of assets, or other forms of assistance. It must be regarded as binding for all States Parties to treat the non-State Party in question as a State Party and to cooperate in “the effective prosecution of the most responsible persons” who are nationals of that State.56

Furthermore, Article 98 is not a provision allowing States Parties to refuse to cooperate with the Court, rather it is a directive to the Court to avoid issuing requests for cooperation in the first place that would require States Parties to choose between competing norms.57 Accordingly, “States cannot be allowed to decide unilaterally that the Court has acted ultra vires and to attach to such determination the consequences they deem fit…[T]he Court should itself examine whether a request for cooperation would require a State to act inconsistently with its obligations under international law…”58 Hence, even where States are forced into a situation where they have to choose between competing obligations, they do not have the right not to cooperate with the Court.

B. The “State and Diplomatic Immunities” Under Article 98(1) Do Not Include Head of State Immunities.

Another approach to interpreting Article 98(1) to avoid a conflict with Article 27, as Dire Tladi has argued, is to read the phrase “State or diplomatic immunity of a person or property” in Article 98(1) as not encompassing “personal immunity” for heads of State.59 There is no guidance in the Rome Statute itself about the meaning of “State or diplomatic immunity.” The ICJ and the International Law Commission (“ILC”) have distinguished between forms of immunity for diplomats and heads of State. Additionally, a restrictive reading of the phrase “State or diplomatic immunity” is reasonable.

In the ICJ’s Arrest Warrant case, the ICJ recognized the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations as instructive on the functional immunities of diplomats under customary international law.60 But the ICJ noted that these conventions do not “contain any provision specifically defining the immunities enjoyed by Ministers for Foreign Affairs,” heads of State, or other senior officials—or in other words, personal immunities.61 The ICJ thereby distinguished “diplomatic immunities,” or functional immunities guaranteed in these two Conventions from “head of State immunities,” or personal immunities.62 The dissenting opinion in the Arrest Warrant case by Judge Van den Wyngaert further highlights the difference between “‘individuals holding diplomatic status’ or diplomats and ‘ministers of foreign affairs.’”63 Diplomats are sent to a receiving State to reside and carry out their duties in the receiving State to facilitate foreign relations between the sending State and the receiving State.64 The receiving State also has the power to accept a diplomat or reject him or her as persona non grata.65 As discussed above, the rationale for functional immunities for these diplomats is to allow them to carry out their official duties without fear of prosecution. This is different from heads of State and foreign ministers, over whose appointment foreign countries have no control.66 Heads of State and foreign ministers furthermore, do not carry out their primary duties in a receiving State. Personal immunities accorded such high-ranking officials serve a different purpose—if these officials were subject to civil or criminal jurisdiction in another country this would prevent their home State from functioning entirely and would prevent the home State from engaging in any foreign relations with any country. This is not the case with diplomats who can be rejected as persona non grata. Additionally, in the Mutual Assistance case, the also ICJ “makes a clear distinction between state immunity, diplomatic immunity and ‘other personal immunities’ with the latter referring to” ratione personae accorded only to the most senior government officials.67 Hence, the jurisprudence of the ICJ supports the interpretation that the phrase “diplomatic immunities” expressed in Article 98(1) of the Rome Statute refers to functional immunities, not personal immunities.

The ILC, in its Draft Articles on Diplomatic Discourse and Immunities (“Draft Articles I”) implicitly distinguished “diplomatic immunities,” or functional immunities, from “head of State immunities,” or personal immunities.68 In these Draft Articles I, “diplomatic immunities” referred solely to members of diplomatic missions in a receiving State to represent the sending State, including Embassy and Consulate staff such as an Ambassador, Chargé d’Affaires, and other supporting diplomatic staff. Nowhere in the Draft Articles I did the ILC discuss personal immunities or other immunities for heads of State or foreign ministers. The Draft Articles I are clear that “diplomatic immunities” refer to functional immunities. In addition, in the ILC’s Draft Articles on Jurisdictional Immunities of States and their Property (“Draft Articles II”), the ILC also distinguished between diplomatic immunities accorded to “persons connected” with a State’s “diplomatic missions, consular posts, special missions, missions to international organizations, or delegations to organs of international organizations or to international conferences,” and personal immunities accorded to “Heads of State.”69 Hence, the ILC’s analyses of immunities further supports the interpretation that the phrase “diplomatic immunities” expressed in Article 98(1) of the Rome Statute refers to functional immunities, not personal immunities.

As Tladi has further argued, State immunity referred to in Article 98(1) also does not include personal immunity for heads of State.70 Under the ILC’s Draft Articles II, State immunity refers to the right of the State and its property to be free “from the jurisdiction of the courts of another State.”71 The Draft Articles II also clearly states that they do not apply to functional or personal immunities.72 There is no basis to argue that “State immunity” includes personal immunities for sitting heads of State.73

Tladi has further argued that Article 98(1) narrowly refers to functional diplomatic and State immunities, not to personal immunities, with the view that nothing should be read into the treaty provisions that is not expressly provided for.74 Recalling the Vienna Convention on the Law of Treaties, “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty…”75 Tladi explains:

If the intention of the drafters was to broadly include all immunities it would be unnecessary to qualify the phrase immunities with ‘state or diplomatic.’ If Article 98(1) does not cover head of state immunity, then it cannot be said that the request to arrest and surrender [a sitting head of state] would require the requested state to act inconsistently with its obligations under customary international law on state or diplomatic immunity. This interpretation of Article 98(1), based on the ordinary meaning of the phrase ‘State or diplomatic immunity,’ is consistent with a contextual interpretation, taking into account Article 27 and the object and purpose of the Statute, namely to end impunity and hold those responsible for the most egregious crimes accountable.76

If the drafters of the Rome Statute had wanted to include personal immunity in the provisions of Article 98(1), they could and would have done so. Furthermore, in looking at the drafting history of the Rome Statute it is evident that States considered “how wide or narrow” the provisions for exemptions from cooperation should be.77 Several States insisted on a “restrictive approach to exceptions” and that any “exceptions should be specifically enumerated.”78 Hence, is can be persuasively argued that Article 98(1) is not in direct conflict with Article 27 when one interprets the phrase “State or diplomatic immunity” in a restrictive manner to not include “personal immunities.”

If one accepts this argument, however, one must also resolve the secondary question of whether a treaty obligation trumps a customary obligation or vice versa.79 Even if Article 98(1) does not include personal immunities and there is no conflict with Article 27, the States Parties still have an independent customary obligation not to arrest a senior government official of another State.80

The first, and most convincing, argument that resolves this issue is that customary international law can be changed. States can erode a customary international law norm by withdrawing consent “or at least modify their consent such that the obligation to respect the immunities of heads of state is inapplicable to cooperation with international tribunals.”81 As discussed above, there is clearly an existing, or at least rapidly emerging, customary international law norm that personal immunities protect senior government officials from being prosecuted for international crimes before international criminal tribunals.82 In addition, the fact that the Rome Statute has been ratified by 122 States—about two-thirds of all States who are members of the United Nations—supports the argument that these norms are changing, and creating an exception for personal immunities concerning international crimes before international criminal tribunals.83 The fact that the Rome Statute also provides for Security Council referrals to confer jurisdiction to the Court over situations in non-States Parties, and that the Security Council, including some of the most powerful nations who are non-States Parties, have referred two situations in non-States Parties to the ICC lends further support. The growth of the field of international criminal justice provides evidence that there is a changing customary norm allowing States to derogate from having to provide personal immunities for senior government officials in order to end impunity for international crimes before international criminal tribunals.

The second argument to resolve States Parties’ competing obligations is that there is a hierarchy of customary international law obligations, and that preventing impunity for violations of jus cogens norms, including prohibitions on war crimes, crimes against humanity, and genocide, trump less important obligations concerning personal immunities.84 It can be argued that accountability for such serious international crimes has risen to the status of erga omnes obligations, and that obligations regarding immunities are less important.85 Therefore, States obligations to cooperate with the ICC according to their treaty obligations under the Rome Statute trump their customary obligations to other States regarding personal immunities.

C. Even If Article 98(1) Exempts States From Cooperation In The Arrest of Non-State Party Nationals, The Security Council Should Require Cooperation in its Referral Resolutions.

Finally, even if one accepts the interpretation of Article 98(1) put forth by the African Union and scholars including Paola Gaeta, there is still one way to resolve the conflict between Article 98(1) and Article 27. Since Article 98(1) would ordinarily apply in the context of Security Council referrals of non-States Parties, the Assembly of States Parties should encourage Security Council members to not only impose obligations on the referred State to cooperate with the Court, but also impose obligations on all United Nations members to cooperate with the ICC with regard to that situation.86 This would bind all United Nations members, especially States Parties, to cooperate with the Court in the arrest and surrender of indicted persons, or provide other forms of assistance, without a concern of violating other competing international customary norms.87 This would implicitly remove personal immunities between States, and thereby eliminate the conflict between competing norms.

V. Conclusion.

There are two ways to interpret the relationship between Article 27 and Article 98(1) to eliminate the tension between them. Non-States Parties, over which the ICC has jurisdiction pursuant to a Security Council referral, can and should be treated as States Parties. Alternatively, the phrase “State and diplomatic immunity” in Article 98(1) can be read as not including personal immunities for heads of State. Interpreting the relationship between Article 27 and Article 98(1) in one of these two ways removes the conflict between them. Either of these two interpretations demonstrates that States are not in fact exempt from cooperating with the Court in the arrest of high-ranking government officials, including nationals of non-States Parties. These interpretations are more in line with the object and purpose of the Rome Statute. Most importantly, these interpretations allow the Court to more effectively carry out its mandate and more effectively secure the arrests of persons suspected of having committed the gravest crimes of international concern.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Dapo Akande, International Law Immunities and the International Criminal Court, 98 Am. J. Int’l L. 407, 409 n.11 (2004) [hereinafter Akande, Immunities] (citing Vienna Convention on Diplomatic Relations, arts. 29, 31, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 [hereinafter VCDR]; see e.g., Antonio Cassese, When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case, 13 Eur. J. Int’l L. 853, 862-65 (2002). ↩

2. 2.

   Akande, Immunities, supra note 1, at 409, 412 n.38 (citing Chanaka Wickremasinghe, Immunities Enjoyed by Officials of States and International Organizations, in International Law 403 (Malcolm D. Evans ed., 2003); see also VCDR, supra note 1, at art. 39(2) (in relation to former diplomats); Vienna Convention on Consular Relations, art. 43(1), Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 [hereinafter VCCR] (in relation to consular officials)); see Cassese, supra note 1, at 863; Micaela Frulli, The Question of Charles Taylor’s Immunity: Still in Search of a Balanced Application of Personal Immunities? 2 J. Int’l Crim. Just. 1118, 1125 (2004); Steffen Wirth, Immunities, Related Problems, and Article 98 of the Rome Statute, 12 Crim. L. Forum 429, 431 (2001). ↩

3. 3.

   Akande, Immunities, supra note 1, at 412 n.38 (citing Wickremasinghe, supra note 2, at 403; VCDR, supra note 1, at art. 39(2); VCCR, supra note 2, at art. 43(1)). ↩

4. 4.

   Akande, Immunities, supra note 1, at 412-13 n.38. ↩

5. 5.

   Id. at 413 nn.42, 43. ↩

6. 6.

   Id. at 413-15 nn.45, 46, 52, 53, 54; see Andrea Bianchi, Immunity Versus Human Rights: The Pinochet Case, 10 Eur. J. Int’l L. 237, 262-66 (1999); Cassese, supra note 1, at 864-65; Frulli, supra note 2, at 1126; Wirth, supra note 2, at 437; Salvatore Zappallà, Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case Before the French Cour de Cassation, 12 Eur. J. Int’l L. 595, 601 (2001). ↩

7. 7.

   Akande, Immunities, supra note 1, at 415 n.56 (citing Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 49, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, art. 50, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War, art. 129, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Convention Relative to the Protection of Civilian Persons in Time of War, art. 146, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, art. 85(1), Jun. 8, 1977, 1125 U.N.T.S. 609). ↩

8. 8.

   Akande, Immunities, supra note 1, at 409 n.13, 14, 411-12 n.29 (citing Arrest Warrant of 11 April 2000, ¶ 51 (Congo v. Belgium, 41 ILM 536 (Feb. 14, 2002) [hereinafter Arrest Warrant]), 30, 31 (citing VCDR, supra note 1, at arts. 29, 31), 32 (citing Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 247 Recueil Des Cours 13, 106-08 (1994)), 33 (Arrest Warrant, supra, at ¶ 53); see Cassese, supra note 1, at 864; Frulli, supra note 2, at 1125-26; Wirth, supra note 2, at 432; Hazel Fox, The Law of State Immunity 423, 429 (2002). ↩

9. 9.

   Akande, Immunities, supra note 1, at 409. ↩

10. 10.

    Id. at 410 n.19 (citing Arrest Warrant, supra note 8, at ¶ 54; Fox, supra note 8, at 441); see Cassese, supra note 1, at 863-64; Wirth, supra note 2, at 432. ↩

11. 11.

    Akande, Immunities, supra note 1, at 410; Arrest Warrant, supra note 8, at ¶ 61; Frulli, supra note 2, at 1126; Wirth, supra note 2, at 432. ↩

12. 12.

    Akande, Immunities, supra note 1, at 409; Arrest Warrant, supra note 8, at ¶ 61; Frulli, supra note 2, at 1126; Wirth, supra note 2, at 432. ↩

13. 13.

    Akande, Immunities, supra note 1, at 409-10 n.15 (citing Wickremasinghe, supra note 2, at 389); see Fox, supra note 8, at 427. ↩

14. 14.

    Akande, Immunities, supra note 1, at 410 n.21 (citing Arrest Warrant, supra note 8, at ¶¶ 55, 70-71). ↩

15. 15.

    Akande, Immunities, supra note 1, at 410 n.22,23 (citing Arrest Warrant, supra note 8, at ¶¶ 55, 58). ↩

16. 16.

    Akande, Immunities, supra note 1, at 416 n.59 (citing Arrest Warrant, supra note 8, at ¶ 61) (“[T]he immunities enjoyed under international law…do not represent a bar to criminal prosecution in certain circumstances…[A]n incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction.”). ↩

17. 17.

    Akande, Immunities, supra note 1, at 416 n.60, 61 (citing Prosecutor v. Charles Taylor, Immunity from Jurisdiction, No. SCSL-03-01-I (May 31, 2004)), 62, 63, 65 (“[T]he principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.”). ↩

18. 18.

    Akande, Immunities, supra note 1, at 416 n.65 (citing Prosecutor v. Charles Taylor, supra note 17, at ¶ 54). ↩

19. 19.

    Id. at 416 n.64. ↩

20. 20.

    Id.; see Prosecutor v. Milosevic, Indictment, No. IT-99-37 (May 22, 1999); Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 7, ¶ 2, S.C. Res. 827, U.N. Doc. S/RES/827 (May 2, 1993), available online ↩

21. 21.

    Akande, Immunities, supra note 1, at 416 n.64. ↩

22. 22.

    Id.; Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute] at art. 27. ↩

23. 23.

    Rome Statute, supra note 22, at art. 27. ↩

24. 24.

    Akande, Immunities, supra note 1, at 420 n.85. ↩

25. 25.

    Id. at 419-20 nn.81 (citing Fox, supra note 8, at 429-30), 82. ↩

26. 26.

    Rome Statute, supra note 22, arts. 86, 87, 89; Paola Gaeta, Expert Comment on Darfur Question, ICC Forum, available online (last visited May 15, 2013). ↩

27. 27.

    Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, 7 J. Int’l Crim. Just. 333, 337-38 (2009) [hereinafter Akande, SC Referrals]. ↩

28. 28.

    Akande, Immunities, supra note 1, at 420-21 n.88; Dire Tladi, The ICC Decisions on Chad and Malawi on Cooperation, Immunities, and Article 98, 11 J. Int’l Crim. Just. 199, 209 (2013); Akande, SC Referrals, supra note 27, at 338. ↩

29. 29.

    Gaeta, supra note 26; Akande, Immunities, supra note 1, at 408, 420 n.84. ↩

30. 30.

    Akande, SC Referrals, supra note 27, at 338. ↩

31. 31.

    Id. at 338 n.18 (citing United States—Standards for Reformulated and Conventional Gasoline, WTO Doc. WT/DS2/AB/R, at 23 (Appellate Body Report, May 1996)). ↩

32. 32.

    Akande, SC Referrals, supra note 27, at 338. ↩

33. 33.

    See Tladi, supra note 28, at 201. ↩

34. 34.

    Rome Statute, supra note 22, at art. 98(1). ↩

35. 35.

    Gaeta, supra note 26; Akande, Immunities, supra note 1, at 425; see Akande, Immunities, supra note 1, at 422-23 for a discussion of the interpretation that “third State” refers to non-States Parties and discussing relevant domestic implementing legislation of the United Kingdom, Malta, and Ireland. Akande, Immunities, supra note 1, at 422-23; see Akande, SC Referrals, supra note 27, at 339 (same). “If it were always the case that Article 27 removes the international law immunity of officials of states even with respect to national authorities of other states, then Article 98 would, in turn, be deprived of all meaning…meaning given to both provisions by making a distinction between immunities accruing to non-parties to the ICC Statute and those accruing to ICC parties…” ↩

36. 36.

    Akande, Immunities, supra note 1, at 417. The Prosecutor can investigate other situations upon his or her proprio motu initiative in States Parties, or when a State refers a situation in another State Party to the Prosecutor. Rome Statute, supra note 22, at arts. 11, 13, 14, 15. The same applies for States who have not ratified the Statute, but have submitted an Article 12(3) declaration submitting to the jurisdiction of the International Criminal Court. Rome Statute, supra note 22, at art. 12(3). Hence, a Security Council referral is the only context in which the Prosecutor could open an investigation into a situation into a non-State Party. ↩

37. 37.

    Gaeta, supra note 26; Akande, Immunities, supra note 1, at 424. ↩

38. 38.

    Akande, Immunities, supra note 1, at 424 n.110 (citing Bruce Broomhall, International Justice and International Criminal Court: Between Sovereignty and the Rule of Law 145 (2003); Paola Gaeta, Official Capacities and Immunities, in The Rome Statute of the International Criminal Court: A Commentary 993-94 (Antonio Cassese, Paola Gaeta & John R. W. D. Jones eds., 2002); Wirth, supra note 2, at 452), 111, 112 (citing Wirth, supra note 2, at 452), 113 (Rome Statute, supra note 22, at art. 98(1)); Akande, SC Referrals, supra note 27, at 339. ↩

39. 39.

    Akande, Immunities, supra note 1, at 425. ↩

40. 40.

    Id. at 419, 420-21 n.87 (citing Broomhall, supra note 38, at 141), 433; Gaeta, supra note 26, at n.17. ↩

41. 41.

    Gaeta, supra note 26; Akande, Immunities, supra note 1, at 421 n.91. This is the argument the African Union has put forth regarding the issuance of arrest warrants for and requests to arrest and surrender Sudanese President Omar Al-Bashir. Gaeta, supra note 26. “In July 2009 the [African Union (“AU”)] Summit adopted the following decision: In view of the fact the [Article 16] request by the African Union has never been acted upon, the AU member states shall not cooperate pursuant to the provision of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender President Omar Al Bashir of The Sudan.” Tladi, supra note 28, at 202, 204. While the Court attempted to address these issue in the context of the case against Al Bashir, the Court conflated the issue of whether or not the Court may exercise jurisdiction over a national of a non-State Party, with the issue of whether requiring States Parties to comply with requests to arrest and surrender a national of a non-State Party compels them to “act inconsistently with [their] obligations under customary international law” owed to the non-State Party. See Id. at 205-208 for a discussion and critique of the Court’s opinions on the non-cooperation of Malawi and Chad. The Court failed to focus on the real issue—the scope of a request for cooperation in the context of Article 98(1)—and essentially interpreted Article 98 as if it did not exist. Id. at 206, 207; Göran Sluiter, Expert Comment on Darfur Question, ICC Forum, available online (last visited May 15, 2013); Akande, SC Referrals, supra note 27, at 336-37. ↩

42. 42.

    Gaeta, supra note 26. ↩

43. 43.

    Tladi, supra note 28, at 206; Gaeta, supra note 26; Akande, Immunities, supra note 1, at 433. ↩

44. 44.

    But see Akande, Immunities, supra note 1, at 421-22, 424 n.95 (citing Arrest Warrant, supra note 8, at ¶¶ 70-71), 96 (“This follows from the decision of the ICJ in the Arrest Warrant case, which held that the issuance and circulation of an arrest warrant for a person entitled to immunity violates that immunity even where no subsequent steps are taken.”). ↩

45. 45.

    Akande, Immunities, supra note 1, at 417, 424, 433. ↩

46. 46.

    Rome Statute, supra note 22, at preamble. ↩

47. 47.

    Akande, SC Referrals, supra note 27, at 342, 348; Tladi, supra note 28, at 211; Sluiter, supra note 41. ↩

48. 48.

    Akande, SC Referrals, supra note 27, at 340 n.26. ↩

49. 49.

    Id. at 341. ↩

50. 50.

    Id. at 342. ↩

51. 51.

    Id. at 342. ↩

52. 52.

    Id. at 341. ↩

53. 53.

    Id. at 342; Sluiter, supra note 41. ↩

54. 54.

    Akande, SC Referrals, supra note 27, at 342. ↩

55. 55.

    Tladi, supra note 28, at 211; Sluiter, supra note 41. ↩

56. 56.

    Sluiter, supra note 41. ↩

57. 57.

    Id. ↩

58. 58.

    Id. ↩

59. 59.

    Tladi, supra note 28, at 213. ↩

60. 60.

    Id. at 213-14 n.72 (citing Arrest Warrant, supra note 8, at § 52). ↩

61. 61.

    Id. ↩

62. 62.

    Id. ↩

63. 63.

    Tladi, supra note 28, at 213-14 n.70 (Dissenting Opinion of Judge Van den Wyngaert, Arrest Warrant, at supra note 8, at § 15). ↩

64. 64.

    Tladi, supra note 28, at 213-14. ↩

65. 65.

    Id. at 213-14. ↩

66. 66.

    Id. ↩

67. 67.

    Id. at 213-14 n.73 (citing Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), § 193, ICJ Reports 177 (Jun. 4, 2008). ↩

68. 68.

    Tladi, supra note 28, at 214. ↩

69. 69.

    Id. (citing International Law Commission Draft Articles on Jurisdictional Immunities of States and Their Property, art. 3 (1991), available online (last visited May 16, 2013) [hereinafter Draft Articles II]. ↩

70. 70.

    Tladi, supra note 28, at 215. ↩

71. 71.

    Draft Articles II, supra note 69, at art. 5. ↩

72. 72.

    Id. at art. 3. ↩

73. 73.

    Tladi, supra note 28, at 215 (noting that state immunity could be violated if the court requests cooperation not in the arrest and surrender of an indicted person, but in the freezing of assets or provision of information, noting also that “property qualifies state immunity”). ↩

74. 74.

    Tladi, supra note 28, at 218. ↩

75. 75.

    Vienna Convention on the Law of Treaties, art. 31, May 23, 1969, 1155 U.N.T.S. 331, available online. ↩

76. 76.

    Tladi, supra note 28, at 216. ↩

77. 77.

    Id. at 218 n.94. ↩

78. 78.

    Id. (See “[t]he statement of Peru which stressed the broadest possible cooperation (A/Conf.183/SR.3). Similarly, Austria stated that a ‘mandatory system of cooperation was a prerequisite’ and that ‘any ground for refusal would have to be explicitly enumerated’ (A/Conf.183/SR.4). Japan also stressed the need for a ‘clear definition of the grounds on which a request by the Court’ could be declined (A/Conf.183/SR.20)”). ↩

79. 79.

    Id. at 218. ↩

80. 80.

    Id. ↩

81. 81.

    Id. at 219. ↩

82. 82.

    Id. ↩

83. 83.

    Id. ↩

84. 84.

    Id. at 220. ↩

85. 85.

    Id. at 220 n.102 (Dissenting Opinion of Judge Van den Wyngaert, Arrest Warrant, at supra note 8, at § 28). ↩

86. 86.

    Tladi, supra note 28, at 208; see Akande, SC Referrals, supra note 27, at 343-48. ↩

87. 87.

    Tladi, supra note 28, at 208. ↩